Glacier Nw., Inc. v. Int’l Bhd. Teamsters, No. 21-1449 (Jun. 1, 2023) (Barrett, J.). At issue: whether the National Labor Relations Act (NLRA) preempts an employer’s state law tort claims against its employees’ union. Reversing Washington’s Supreme Court, the U.S. Supreme Court held the NLRA does not preempt such claims.
Appellant sells and delivers ready-mix concrete to Washington businesses. Unlike sacks of mix from your local Ace, the Company mixes job-specific blends for each customer, which are typically poured from a concrete mix truck. But the rotating drums which prevent the ‘crete from hardening during delivery are not magic. Even when churned, concrete hardens; if it does so inside a ready-mix truck, the resulting damages to the vehicle can be significant.
Respondent is the exclusive union representative for the Company’s approximately 85 drivers. On August 18, 2017, the parties ratified a new collective bargaining agreement (CBA). A week before, the drivers had gone on strike. The strike resulted in the loss of concrete. Following the strike’s end and the CBA’s ratification, a union representative purportedly made statements regarding whether drivers would complete a job rescheduled because of the strike.
According to the Company, employees stopped their work on August 11, 2017 at every stage of operations. Empty trucks were left waiting to be loaded, and full trucks were prevented from delivering ‘crete. Rather than dump and clean the trucks returning from delivery, the drivers left partial and full loads in the trucks. The Company accused the Union of purposefully stopping work at a time when ‘crete mix would be damaged. According to the Company, it spent considerable time and expense repairing damage and was unable to complete deliveries to customers.
On August 12, 2017, the Company was scheduled to deliver and pour a substantial amount of custom ‘crete to a project in South Lake Union. Due to the strike, performance was delayed. Immediately following the CBA’s ratification, delivery was rescheduled for Saturday, August 19, 2017. Due to rumors the drivers would not be making that Saturday delivery, the Company and customer both sought assurances from the Union. Testimony suggested a Union representative responded by stating to the customer, “[t]he drivers have been instructed to respond to dispatch” and “[w]e have specifically instructed the drivers to respond to dispatch.”1
On August 19, 2017, approximately half of the drivers necessary to complete the pour showed up. The Company was forced to pay $100,000 to the customer for the cancellation. The Company did not speak with the Union representative, who denied stating the drivers would complete the job; nevertheless, the Company stated it reasonably relied on such statements to dispel the rumors to the contrary.
The Company sought damages against the Union in superior court. The Complaint set forth the following claims against the Union: regarding the work stoppage, conversion, trespass to chattels, tortious interference with contract, and civil conspiracy to destroy concrete; and regarding the rescheduled and cancelled job, negligent misrepresentation, fraudulent misrepresentation, and intentional interference with contract. The Union’s response included filing a complaint with the National Labor Relations Board (NLRB) alleging unfair labor practices.
The Union moved to dismiss the tort claims for lack of subject matter jurisdiction and failure to state a claim. The superior court concluded the economic harm related to the damaged concrete was plausibly protected by the NLRA and dismissed those claims; however, it refused to dismiss the remaining claims because they arose from conduct occurring after the CBA was ratified.
The Union then moved the court to enter summary judgment on the remaining claims. The court did so, concluding Glacier could not have relied on the Union representative’s statements and any such statements were not intended to interfere with any contract between Glacier and the customer.
The Court of Appeals disagreed that the NLRA preempts the property damage claims and reversed.2 The panel acknowledged that state claims involving conduct arguably protected by the NLRA are protected,3 however, the U.S. Supreme Court previously expressed that the destruction of concrete is not protected under section 7 of the NLRA.4
The panel agreed with the superior court that the other claims should be dismissed but set forth its own alternative bases. The court concluded that the Union representative’s statements were a promise of future performance, which could not form an actionable statement.5 With regards to intentional interference, the panel acknowledged that under the Second Restatement, recovery for tortious interference can be awarded where contractual performance was rendered more expensive or burdensome;6 still, Appellant had failed to comply with required notice requirements and consequently the drivers were not obligated to perform the rescheduled pour.
The Union sought review of the appellate court’s reversal regarding the concrete damage claims; the Company, in turn, sought review of the appellate court’s affirmance of the trial court’s dismissal of the remaining claims.
Washington’s Supreme Court held Appellant’s damage claims were preempted because the conduct at issue was at least arguably protected by section 7 of the NLRA. The supremacy clause of the U.S. Constitution empowers Congress to preempt state law.7 Garmon holds state law claims are preempted when they involve conduct “arguably” protected under section 7. There, the U.S. Supreme Court reasoned that because the NLRB is the agency entrusted with implementing the nation’s labor policy, courts are not the proper forum for determining whether conduct is subject to section 7: “When an activity is arguably subject to [section 7], the States as well as the federal courts must defer to the exclusive competence of the [NLRB] if the danger of state interference with national policy is to be averted.”8 Conduct is arguably protected by section 7 when the proponent of preemption “advance[s] an interpretation of the [NLRA] that is not plainly contrary to the language and that has not been ‘authoritatively rejected’ by the courts or [NLRB].”9 Further, the ability of the NLRB to grant only injunctive relief weighs in favor of preemption because a state court’s ability to award damages, a power not afforded to the NLRB, emphasizes the risk of conflict.10
According to Washington’s Supreme Court, the appellate court erred in characterizing the damage resulting from the work stoppage as unprotected intentional destruction of property. U.S. Supreme Court precedent had recognized two exceptions to preemption: where (i) the activity is a peripheral concern of the Labor Management Relations Act, or (ii) the conduct “touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.”11 To Washington’s highest court, the second factor was at issue.
The local feeling exception essentially concerns violence and imminent threats to public order.12 “[T]he maintenance of domestic peace is not overridden in the absence of clearly expressed congressional direction.”13 The question is one of intimidation and threats of violence.14 Actions such as violence, defamation, intentional infliction of emotional distress, and obstruction of access to property involve conduct not protected by section 7.15 Thus, Washington’s Supremes explained, “If the work stoppage in this case fits within this category of unprotected conduct, then it is clearly not preempted and the state law claims may go forward.”16
Although the intentional destruction of property has been ruled to fall within the local feeling exception,17 the state supreme court noted that the exception is better understood as relating to violent or outrageous conduct rather than the incidental destruction of product due to a strike—which had never been the subject of a U.S. Supreme Court local exception case.
In the state supreme court’s view, the work stoppage was arguably protected because it involved two competing principles recognized by the NLRB: (i) employees must take reasonable precautions in protecting employer property, including product;18 and (ii) a strike may inflict economic harm to create negotiating leverage.19 The appellate panel had improperly relied on the former precedent. This did not persuade the majority of Washington justices, who reiterated the NLRB’s holding that “incidental product damage does not render a strike unprotected.”20 Under NLRB precedent, “The economic pressure flowing form such a strike must be weighed against the goals sought to be achieved by the strikers.”21 But again, the Court need not engage in such a robust factual analysis because, as Garmon directs, the conduct at issue is at least arguably protected under section 7. Accordingly, Washington’s Supreme Court held that the NLRA preempts Glacier’s tort claims related to the work stoppage.
Washington’s Supreme Court also undertook de novo review of the lower courts’ summary judgment rulings on the remaining claims. Because both negligent and fraudulent misrepresentation require a showing of a misrepresentation of existing fact, the lower courts properly dismissed Appellant’s remaining claims on summary judgment. Further, the Court agreed with the appellate panel that Glacier could not show intentional interference proximately caused its damages because the Union representative’s alleged statements could not have foreseeably led to the losses incurred due to the cancelled mat pour.
What a difference a deranged lunatic in the executive office can make; i.e., by appointing a few deeply-conservative justices who are out of step with both a majority of the nation’s electorate and legal precedent. Adroitly, the Company sought review by the U.S. Supreme Court, now firmly entrenched in employer-rights fantasyland. Boney Carrot’s majority opinion holds the NLRA does not preempt the Company’s tort claims against the Union for damages to company property during a labor dispute.
First, although the NLRA protects the right to strike, like other rights of the oppressed, that right is not absolute. Given limitations on the right to strike, the Union, as the party asserting preemption, failed to demonstrate that the NLRA arguably protects the drivers’ conduct. Accepting the complaint’s allegations as true, the Union did not take reasonable precautions to protect company property from imminent danger resulting from the work stoppage. Even though the Union members know ‘crete is highly perishable, that it can last for only a limited time in a delivery truck’s rotating drum, and that ‘crete left to harden in a truck’s drum causes significant damage to the truck, the truck drivers stopped work in the midst of delivering substantial amounts of ‘crete. The resulting risk of harm to company equipment and destruction of its ‘crete were both foreseeable and serious. Accordingly, the Union failed to “take reasonable precautions to protect” against that foreseeable and imminent danger.22 And because such proletarian conduct is not arguably protected by the NLRA, Washington’s Supreme Court erred in dismissing the tort claims as preempted.
Secondly, the Union argues employees do not forfeit the NLRA’s protections simply by commencing a work stoppage when the loss of perishable product is foreseeable. Unfortunately for the Union, however, Harlan Crow’s justices would decide this case and in their jaundiced view, there is much more at play than the foreseeable loss of perishable product. Given the lifespan of wet ‘crete, it cannot be batched until trucks are ready to take it. According to the majority opinion, the drivers not only caused the ‘crete to be prepared but also tricked the company by failing to deliver it. The evil workers not only destroyed the concrete but also put company trucks in harm’s way! Here’s a tissue: dab your tears, there’s more.
Thirdly, Carrot’s opinion acknowledges that the Union’s decision to initiate the strike during the workday and failure to give the Company specific notice do not themselves render the Union’s conduct unprotected. Oh, okay; so the tort claims should have been dismissed after all? No, because those actions are relevant in evaluating whether the employees took reasonable precautions, whether harm to property was imminent, and whether that danger was foreseeable.23 Here, the choice to call a strike after drivers had loaded ‘crete into company trucks strongly suggests to a certain type of person that the Union failed to take reasonable precautions to avoid foreseeable, aggravated, and imminent harm to company property. This truly is much more important than the ability to bargain for a living wage.
1 198 Wn.2d 768, 500 P.3d 119 (“Op.”).
2 Glacier Nw., Inc. v. Int’l Bhd. of Teamsters Local Union No. 174, 15 Wn. App. 2d 393, 475 P.3d 1025 (2020).
3 San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959).
4 Glacier, 15 Wn. App. 2d at 408 (quoting Garmon, 359 U.S. at 246)
5 Adams v. King County, 164 Wn.2d 640, 662, 192 P.3d 891 (2008).
6 RESTATEMENT (SECOND) TORTS § 766A (AM. LAW INST. 1979).
7 U.S. CONST. art. IV, cl. 2.
8 Garmon, 359 U.S. at 244-45.
9 Int’l Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 395, 106 S. Ct. 1904, 90 L. Ed. 2d 389 (1986).
10 Id. at 247.
11 Garmon, 359 U.S. at 243-44.
12 Id. at 247.
13 Id. (citing Int’l Union, United Auto., Aircraft & Agric. Implement Workers v. Russell, 356 U.S. 634, 78 S. Ct. 932, 2 L. Ed. 2d 1030 (1958); Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S. Ct. 206, 2 L. Ed. 2d 151 (1957); United Auto., Aircraft & Agric. Implement Workers v. Wis. Emp’t Relations Bd., 351 U.S. 266, 274, 76 S. Ct. 794, 100 L. Ed. 1162 (1956); United Constr. Workers v. Laburnum Constr. Corp., 347 U.S. 656, 74 S. Ct. 833, 98 L. Ed. 1025 (1954)).
14 Id. at 248.
15 Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 204, 98 S. Ct. 1745, 56 L. Ed. 2d 209 (1978).
16 Op. at 20.
17 E.g., Lodge 76, Int’l Ass’n of Machinists & Aerospace Workers v. Wis. Emp’t Relations Comm’n, 427 U.S. 132, 136, 96 S. Ct. 2548, 49 L. Ed. 2d 396 (1976).
18 Marshall Car Wheel & Foundry Co., 107 N.L.R.B. 314, 315.
19 Johnnie Johnson Tire Co., 271 N.L.R.B. 293, 294-95.
20 Op. at 28.
21 Lumbee Farms, 285 N.L.R.B. 503, 506; see also Nat’l Labor Relations Bd. v. A. Lasaponara & Sons, 541 F.2d 992, 998 (2d Cir. 1976) (stating that a work stoppage was a protected strike because, “the economic pressure . . . clearly failed to reach a degree so grossly disproportionate to the goal sought to be achieved that it renders the conduct unprotected”).
22 Bethany Medical Center, 328 N.L.R.B. at 1094.
23 See International Protective Services, Inc., 339 N.L.R.B. 701, 702–3.
